New York's Condom Bait-and-Switch

Department of Health hands them out, NYPD arrests people for carrying them. Is this about improving public health—or arrest numbers?

One block north of the boardwalk in Coney Island, a white van is parked on the windswept block of Surf Avenue, between West 22nd and West 23rd Streets. Just outside the van stands a young woman wearing a teal hoodie, her auburn hair pulled back into a tight bun with a few loose strands escaping around her ears, and an anxious expression. Jennifer Gonzalez-Hermides, 32, is a prostitute, and she is here to pick up free condoms. But there is a problem. “The first time,” she says, “was right over here on Surf Avenue. They asked me to take out what was in my pocket, and I had one in there.” Sweat glistens on her pale forehead. “They arrested me.”

Gonzalez-Hermides is talking about the cops, and her case is hardly unique. Another prostitute, a 33-year-old who goes by the street name "Tiny," says she was arrested on Surf Avenue last year after an undercover police offer asked her, “What do you have in your pockets?” She had two condoms and was arrested for “loitering for the purposes of prostitution.” She says that several of her friends have recently had similar experiences. As for Gonzalez-Hermides, she was arrested two subsequent times, in 2009 and 2010, for prostitution-related offenses. Both times, she says, her condoms were confiscated when she was arrested, and both times she pleaded guilty. While she was serving time after her second arrest, her husband died of a drug overdose.

The New York City Department of Health's free condoms.
Kelly Schott
The New York City Department of Health's free condoms.
Emily Gogolak

“This is a huge problem,” says Isaac Hernandez, an outreach worker with the Foundation for Research on Sexually Transmitted Diseases (FROST’D), a Harlem-based harm-reduction nonprofit. Hernandez has been driving the white van to its parking spot on Surf Avenue for the past 12 years to distribute food, clean syringes, and the condoms that his group receives from the Department of Health. He says that undercover police routinely park nearby—he points out their van down the street. There is no law that says the possession of condoms is illegal, of course, and yet NYPD officers routinely use the possession of condoms as arrest evidence for charges of prostitution or loitering for the purposes of prostitution. This has created a situation that would be farcical if it weren’t so bleak—one city agency conducts a public-health campaign and the very people who take advantage of it are then promptly arrested by a different city agency—leading to cases being thrown out of court, a suppressed and redacted city-sponsored study of the problem, and a bill to address the matter in the current session of the state legislature.

On a recent Tuesday morning in February, the single-file line behind the security checkpoint at Midtown Community Court, on West 54th Street between Eighth and Ninth Avenues. All so-called quality-of-life offenses in Manhattan pass through this court: public urination, petty larceny, riding a bike without a helmet, using a scooter in a transportation terminal, solicitation on subways, drinking in public—and prostitution and loitering for the purposes of prostitution.

Kate Mogulescu, fresh-faced with dark brown curly hair and a warm smile, rushes in and out of the courtroom to retrieve more clients. A staff attorney for the New York Legal Aid Society and head of its Trafficking Victims Legal Defense and Advocacy Project, she is the go-to defender for prostitution-related cases in Manhattan. Today she will represent 25 clients arrested for prostitution or loitering for the purposes of prostitution—almost all of whom will plead guilty. “There is a real disincentive in the criminal court system to contest allegations,” Mogulescu says. In New York City, high numbers of quality-of-life offenses have created pressure on the groaning court system to rapidly dispose of minor charges at the first court date or arraignment. Defendants risk more jail time by taking a case to trial, so they often accept a lesser sentence for pleading guilty. “They want to get it over with,” says Mogulescu, “through community service or the shortest jail time possible.”

According to the New York Department of Criminal Justice Statistics, there were 4,054 prostitution-related arrests in New York City in 2011. On the rare occasion that prostitution cases actually go to trial—in her first two years at Midtown Community Court, Mogulescu had only 10 that did so—judges have dismissed those in which the supposed evidence amounted to the possession of condoms.

In one such case, in January 2011, the prosecutor, Assistant District Attorney Matthew McKenzie, attempted to use the possession of a single, wrapped condom as evidence for prostitution. Judge Richard Weinberg, then the presiding judge at Midtown Community Court, said, according to court transcripts, “I find nothing wrong. I find no probative value at all in finding a condom.” After the prosecutor pushed further for conviction, Weinberg pushed back. “In the age of AIDS and HIV,” he said, “if people are sexually active at a certain age and they are not walking around with condoms, they are fools.” Case closed.

The New York City Department of Health has been giving away free condoms since 1971, and has made condom distribution a centerpiece of its public-health program over the past six years. In 2007, the city created its very own condom: the NYC Condom, packaged with sleek black wrappers and a design that mimics the lettering found on subway signs. The Department of Health reports that it distributed 35.5 million condoms last year alone. In 2011, the city even launched an app that uses GPS technology to locate and give directions to the nearest venues that distribute free NYC Condoms. The Department of Health wants to make New York City the safest city in the world to have sex in—but for whom?

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18 comments
melissabfrank
melissabfrank

That's funny. I lived 7 years in TX. Some just north of the hill country and the rest in DFW. I went to Syracuse and work right near Dinosaur BBQ and its enjoyable but not Texas BBQ. You want good chimes you go to NY. You want good Mexican and BBQ, Texas is the spot. Excited to see what John Aviles, ex-Franklin's guy does in BK.

PeoplesPride
PeoplesPride

Peoples Pride, a lifestyle denim brand, with  condom pocket in mind .... read about it http://bit.ly/Wh5fg6 

Love to hear from you, Peoples Pride team 

frank124c
frank124c topcommenter

People who are arrested unjustly in NYC should plead "Not Guilty!" and demand a trial by jury. When people start standing up for their rights, injustice will disappear. . 

gm0622
gm0622

so, if I were to walk out of a bodega after purchasing condoms, i would be a risk of arrest? some defense attorney is going to ask that question, if it has not been asked already.

NoComment
NoComment

The Village Voice is exactly the kind of paper that Warren Buffet was in the news talking about yesterday.  A local paper that prints stories, important to locals, that no other national paper will carry.  Thank you, Village Voice.  Excellent work.

This is an incredibly important piece of journalism.  Ray Kelly should be horse-whipped for allowing such laws to taint the NYPD.  And can you please call out Christine Quinn for her part in this in a follow-up article?  Who passed these laws? If it's the City Council, I'd like to know when it passed and how long it has been going on.  It's shameful and shocking what the NYPD has become.

James Donaji
James Donaji

The article doesn't mention trans women, but the NYPD does the same to them. Gay men are also accused of "looking for sex" or something similar if they have condoms in their pockets. Thanks for the article, VV. Sharing it.

Village Voice
Village Voice

Cheers CJ - nothing wrong with keeping us on our toes.

C.j. Swarthout
C.j. Swarthout

I mean only to give constructive criticism in the interest of having one of the few credible journalistic voices appear as such. Keep up the real journalism yalls.

C.j. Swarthout
C.j. Swarthout

Ok, I've read but I still think the two above snippets are a bit reckless. It's a wonderful article and has a lot of value and isn't being reported on to the extent it should be like a lot of stuff that VV does. It just seems that the two above quotes make it seem like a conspiracy from the jump(which I'm assuming you don't believe), rather than some people conspiring to keep from stepping on NYPD's toes to the detriment of public health (which it most surely is).

Village Voice
Village Voice

If it weren't for the city report on the issue with half the sections blacked out we got our hands on, and cases being thrown out of court, we'd tend to agree - read on, friend.

C.j. Swarthout
C.j. Swarthout

I usually think the VV is a last vestige of real media journalism..., and I admittedly haven't read the article, but the above line is kinda reckless. This has way more to do with the failures of bureaucratic interaction and the douchiness of the NYPD than some kind of higher-level conspiracy.

aldarase
aldarase

@frank124c when your options are staying locked up for possibly months because you can't make bail or pleading out what would you do?

jmcarollo
jmcarollo

@NoComment I am a member of an advisory panel to the Commissioner ... in all of our meetings with him over this issue, he has made it clear that the department takes its "evidence" orders from the DA's office ... we have five in NYC ... only two have reluctantly pulled back, Manhattan and Kings ... but they have refused to put it in writing! We are making progress, and there was a press conference just this week, but the work will not end until all NY State DA's are on board. Period.

jmcarollo
jmcarollo

@C.j. SwarthoutI am a member of an advisory panel to the Commissioner ... in all of our meetings with him over this issue, he has made it clear that the department takes its "evidence" orders from the DA's office ... we have five in NYC ... only two have reluctantly pulled back, Manhattan and Kings ... but they have refused to put it in writing! We are making progress, and there was a press conference just this week, but the work will not end until all NY State DA's are on board. Period.

 
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